MEDICAL COUNCIL OF INDIA Vs KALINGA INSTITUTE OF MEDICAL SCIENCES (KIMS) .
Bench: MADAN B. LOKUR,N.V. RAMANA
Case number: C.A. No.-004914-004914 / 2016
Diary number: 11687 / 2016
Advocates: GAURAV SHARMA Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4914 OF 2016 (Arising out of S.L.P.(C) No.9997 of 2016)
Medical Council of India .…Appellant
versus
Kalinga Institute of Medical Sciences .…Respondents (KIMS) & Ors.
J U D G M E N T
Madan B. Lokur, J.
1. Leave granted.
2. This appeal is yet another chapter in the sordid saga
of admissions to medical colleges. Undoubtedly, there is
something rotten in the state of medical colleges. Unless
the concerned Ministries in the Government of India take a
far more proactive role in ensuring that medical colleges
have all the necessary facilities, clinical materials, teaching
faculty, staff, accommodation etc. the health of the people of
our country will take a hit in the coming years due to
inadequately educated doctors. Quality in medical
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education is equally important, if not more, than quantity.
3. The respondent Kalinga Institute of Medical Sciences
(for short KIMS) is a recognized medical college. It is
entitled to admit 100 students every year to the MBBS
course.
4. For the academic year 2014-15, it was granted
permission to admit an additional 50 students over and
above the 100 students that was already its entitlement.
5. KIMS was desirous of granting admission to 100 plus
50 students for the academic year 2015-16. With a view to
ensure that adequate facilities were available for the
increased number of students, an inspection was required
to be carried out by the Medical Council of India (for short
‘the MCI’) in accordance with the Medical Council of India
Establishment of Medical College Regulations, 1999.
6. Consequently, an inspection was carried out on 27th
and 28th January, 2015 by an Inspection Team of the MCI
which revealed quite a sorry state of affairs. A large number
of serious deficiencies were pointed out by the Inspection
Team and communicated to the MCI. Thereafter, in a
communication sent by the MCI to the Dean Principal of
KIMS on 31st January, 2015 the deficiencies were indicated
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and KIMS was informed that a show cause notice was
proposed to be issued for withdrawal of recognition of the
courses run by it. Be that as it may, the MCI took a decision
recommending to the Central Government through the
Ministry of Health and Family Welfare (Department of
Health and Family Welfare) to deny permission to KIMS to
add 50 additional seats for the MBBS for the academic year
2015-16.
7. We enquired from learned counsel for the MCI the
procedure for carrying out an inspection. Our attention was
drawn by learned counsel to Page ‘J’ of the appeal paper-
book wherein it is stated (and not denied) that an inspection
is conducted by a team of three neutral Professors. Of these,
one is a coordinator and the other two are taken from an
approved list of eminent medical Professors from reputed
Government institutions only. Some of the institutions
mentioned are the All India Institute of Medical Sciences,
Post Graduate Institute, Chandigarh, Maulana Azad Medical
College (Delhi), Safdarjung College (Delhi), Medical College
(Kolkata), Madras Medical College (Chennai), Osmania
Medical College (Hyderabad), Grant Medical College
(Mumbai), G.S. Medical College (Mumbai), Bangalore
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Medical College (Bengaluru) etc. There is therefore no doubt
that not only are the medical colleges highly reputed but it
is also stated that the Professors from these colleges are
eminent medical Professors randomly selected by computer
software from a list of coordinators and inspectors.
8. Our attention was also drawn to the decision of this
Court in Manohar Lal Sharma v. Medical Council of
India1 wherein it was held that since the inspection is taken
by “doctors of unquestionable integrity and reputation, who
are experts in the field, there is no reason to discard the
report of such an inspection.” In the present appeal, there is
no allegation made by KIMS of any mala fides of the
Inspection Team or any perversity in the inspection report
and hence there is no question of challenging the
conclusions of a neutral, randomly selected Inspection Team
in its assessment.
9. As mentioned above, the inspection report and the
decision of the MCI were communicated to the Central
Government. On a consideration of the material made
available, the Central Government sent a communication
dated 15th June, 2015 to the Dean Principal of KIMS
1 (2013) 10 SCC 60
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directing the institute NOT to admit any students in the
second batch of MBBS course against the increased intake
from 100 to 150 seats for the academic year 2015-16. The
text of the letter sent by the Central Government to the
Dean Principal of KIMS on 15th June, 2015 reads as follows:
“I am directed to refer to MCI letter (s) dated 01.04.2015 thereby recommending to the Central Government not to renew the permission for admission of 2nd batch of MBBS course against increased intake i.e. from 100-150 seats Kalinga Institute of Medical Sciences, Bhubaneswar for the academic year 2015-16 and to say that the Central Government has decided to accept the recommendations of MCI.
2. You are therefore directed NOT to admit any student in 2nd batch of MBBS course against increased intake i.e. from 100-150 seats for the academic year 2015-16. Admission in next batch of students against increased intake for the year 2016-17 will be made only after obtaining the Central Government Permission.
3. Any admission made in this regard will be treated as irregular and action will be initiated as per the provisions of IMC, Act, 1956 and Regulations made thereunder.
4. Further, the MCI has also informed to apply Clause 8(3)(1) (c) & (d) of Establishment of Medical College Regulation (amendment), 2010.”
10. Feeling aggrieved by the adverse decision, KIMS
preferred a writ petition in the High Court of Orissa being
W.P. (C) No.15685 of 2015. The writ petition was taken up
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for consideration on 14th September, 2015 when the
direction dated 15th June, 2015 passed by the Central
Government was set aside on the ground that no hearing
was given to KIMS before that order was passed. The High
Court then directed KIMS to appear before the Secretary to
the Government of India in the Department of Health and
Family Welfare or any other authorized officer on 18th
September, 2015 with all documentary evidence. The said
officer was directed to hear KIMS, consider the compliance
reports of KIMS and the views of the MCI and then pass
necessary orders.
11. In obedience to the order passed by the High Court a
hearing was given to KIMS by a Hearing Committee.
Thereafter, the Central Government passed an order on 24th
September, 2015 which observed as follows:
“The college was earlier given hearing on 12.03.2015. The compliance submitted by the college is same as the last time. Though the college claims to have rectified the deficiencies, it can only be verified through physical assessment by MCI.
The deficiencies are non-condonable. The documents alone submitted by the college do not sufficiently inspire confidence as to rectification of the deficiencies. Therefore, this Committee has considered the assessment report of the MCI assessors dated 27th and 28th January, 2015 and the compliance report submitted by the representatives of the college and decided that the Ministry may accept
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recommendation of MCI.”
12. On a consideration of the order passed by the High
Court and the recommendations of the MCI, the Central
Government decided not to renew the permission for
admitting the second batch of MBBS students against the
increased intake that is from 100 to 150 for the academic
year 2015-16 at KIMS.
13. The writ petition was then taken up for consideration
by the High Court on 25th September, 2015. The High Court
considered the facts of the case and placed reliance on
Rajiv Memorial Academic Welfare Society v. Union of
India2 (which appeal was decided in the circumstances of
the case and was not a general direction) and a decision of
the Kerala High Court and directed, inter alia, that the
Central Government shall grant provisional permission to
KIMS to conduct the course for the additional 50 students
in the academic year 2015-16. While giving this direction,
the High Court noted that admission to the MBBS course
was required to be completed by 30th September, 2015. The
High Court made it clear that this interim order would be
subject to further orders passed in the writ petition and it
2 2016 (3) SCALE 184
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was also made clear that neither KIMS nor any of the
students would claim any equity on the basis of the
approval permission granted by virtue of the orders of the
High Court.
14. Pursuant to the mandatory direction given by the
High Court, the Ministry of Health and Family Welfare
passed an order on 28th September, 2015 granting
provisional permission to KIMS to conduct the MBBS course
for the second batch against the increased intake from 100
to 150 MBBS seats for the academic year 2015-16 subject
to certain conditions. One of the conditions was to the effect
that KIMS would make it clear to the students who are
admitted that their admission is subject to the result of the
writ petition. Consequent upon this decision, KIMS
admitted 50 students to the MBBS course for the academic
year 2015-16. These students are represented before us in
this appeal and have been heard.
15. At this stage, it may be mentioned that against the
interim order dated 25th September, 2015 passed by the
High Court, the MCI preferred a petition in this Court which
came up for consideration on 13th October, 2015. In that
petition being SLP (C) No. 28312 of 2015, special leave to
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appeal was granted and the order passed by the High Court
on 25th September, 2015 was stayed and status quo as on
the date on which the impugned order was passed (25th
September, 2015) was directed to be maintained.
16. Be that as it may, when the appeal filed by MCI came
up for consideration on 4th November, 2015 it was directed
that the High Court should endeavour to hear the pending
writ petition expeditiously. It was also directed that the
interim order earlier passed on 13th October, 2015 would
continue till the High Court decided the writ petition.
17. When the writ petition was again taken up by the
High Court, an amendment application was filed by KIMS
and the amendment allowed. It is not necessary to go into
the details of the amendment since that has no bearing in
this appeal.
18. In any event, when the writ petition was taken up for
expedited consideration by the High Court on 3rd December,
2015 it was noted that 50 students had already been
admitted by KIMS pursuant to the directions given by High
Court on 25th September, 2015 and the provisional
permission granted by the Central Government on 28th
September, 2015. The admission was of course subject to
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the outcome of the writ petition. The High Court then
directed that necessary affidavits be filed and in the
meanwhile MCI was directed to constitute a fresh Inspection
Team to inspect KIMS and to check up the purported
compliance claimed by KIMS of the deficiencies pointed out
in the earlier inspection. It was further directed that the
Directorate of Medical Education and Training, Government
of Odisha would also participate in the inspection and the
report be submitted on or before 23rd December, 2015.
19. Feeling aggrieved by the order passed by the High
Court on 3rd December, 2015 requiring the Directorate of
Medical Education and Training, Odisha to be a part of the
Inspection Team, the MCI preferred a petition in this Court
being SLP (C) No.34856 of 2015. Special leave was granted
and by an order dated 16th December, 2015 it was made
clear by this Court that the Directorate of Medical
Education and Training, Odisha shall not participate in the
inspection.
20. There appears to have been some dispute in this
Court (which was not resolved) with regard to the academic
year for which the fresh inspection was required to be
carried out. According to learned counsel for the MCI the
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inspection was to be carried out for 2016-17 while this was
opposed by learned counsel appearing for KIMS. This Court
however did not record anything in this regard one way or
the other.
21. A fresh inspection was in fact carried out by MCI on
7th and 8th January, 2016 and the Inspection Team once
again found a very large number of deficiencies in the
facilities available at KIMS. The report of the Inspection
Team and the consequent resolution of the MCI were
communicated to the Central Government to the effect that
the Central Government should not renew permission for
admission of the 3rd batch of MBBS students against the
increased intake from 100 to 150 seats for the academic
year 2016-17.
22. Thereafter, the pending writ petition was taken up for
hearing by the High Court on 17th February, 2016 and the
impugned judgment and order delivered on 4th March, 2016.
23. A perusal of the decision of the High Court clearly
indicates that it considered the latest report of the
Inspection Team as if it was hearing an appeal against the
report. In doing so, the High Court went into great details
on issues relating to the number of teaching beds in the
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hospital, the limitations in the OPD Department, the
number of units available in the subjects of General
Medicine, Pediatrics etc., bed occupancy, number of
Caesarean sections, discrepancy in data of major and minor
operations, computerization in the institution, number of
patients in the ICU, number of static X-ray machines,
deficiency of examination halls, lecture theatres, library,
students hostel, interns hostel, playground etc. etc. Surely,
this was not within the domain of the High Court in exercise
of its jurisdiction under Article 226 of the Constitution.
24. The High Court did not appreciate that the inspection
was carried out by eminent Professors from reputed medical
institutions who were experts in the field and the best
persons to give an unbiased report on the facilities in KIMS.
The High Court under Article 226 of the Constitution was
certainly not tasked to minutely examine the contents of the
inspection report and weigh them against the objections of
KIMS in respect of each of its 18 items. In our opinion, the
High Court plainly exceeded its jurisdiction in this regard in
venturing into seriously disputed factual issues.
25. Learned counsels for KIMS and the students
submitted that the High Court was left with no option but to
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critically examine the report of the Inspection Team since it
was factually erroneous and did not deserve to be relied on
either for the increase in intake of seats for the academic
year 2015-16 or the academic year 2016-17. We see no
reason to accept the submission of learned counsels.
26. Medical education must be taken very seriously and
when an expert body certifies that the facilities in a medical
college are inadequate, the Courts are not equipped to take
a different view in the matter except for very cogent
jurisdictional reasons such as mala fides of the Inspection
Team, ex facie perversity in the inspection report,
jurisdictional error on the part of the MCI etc. Under no
circumstance should the High Court examine the report as
an appellate body – this is simply not the function of the
High Court. In the present case there was no ground made
out at law for setting aside the report of the Inspection
Team.
27. The High Court was of opinion that the Inspection
Team was required to conduct the inspection with reference
to the academic year 2015-16 but the report pertains to the
academic year 2016-2017. If that was so, the High Court
could have passed an appropriate order in this regard
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rather than examine and scrutinize the inspection report
prepared for the academic year 2016-17 which academic
year was not at all the subject matter of consideration or
discussion before it. Moreover, invalidation of the inspection
report for the academic year 2016-17 would not
automatically invalidate the inspection report for the
academic year 2015-16. Unfortunately, the High Court
spent its energy on adjudicating a non-issue.
28. It appears to us that both the MCI and the Central
Government each having twice considered the inspection
report submitted by neutral medical Professors, with the
Central Government having given a personal hearing to
KIMS on the second occasion (and perhaps on the first
occasion as well) the matter ought to have been given a
quietus by the High Court at least for the academic year
2015-16.
29. That apart, we are of opinion that the High Court
ought to have been more circumspect in directing the
admission of students by its order dated 25th September,
2015. There was no need for the High Court to rush into an
area that the MCI feared to tread. Granting admission to
students in an educational institution when there is a
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serious doubt whether admission should at all be granted is
not a matter to be taken lightly. First of all the career of a
student is involved – what would a student do if his
admission is found to be illegal or is quashed? Is it not a
huge waste of time for him or her? Is it enough to say that
the student will not claim any equity in his or her favour? Is
it enough for student to be told that his or her admission is
subject to the outcome of a pending litigation? These are all
questions that arise and for which there is no easy answer.
Generally speaking, it is better to err on the side of caution
and deny admission to a student rather than have the
sword of Damocles hanging over him or her. There would at
least be some certainty.
30. Whichever way the matter is looked at, we find no
justification for the orders passed by the High Court
particularly the order dated 25th September, 2015 and the
order dated 4th March, 2016.
31. It was submitted by the learned counsel for the KIMS
that the Central Government has decided to accept the
decision of the High Court and it has in fact issued an order
dated 26th April, 2016 virtually to this effect. We have gone
through the order dated 26th April, 2016 and find that the
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permission granted to continue with the studies of the
students for the academic year 2015-16 is subject to the
orders passed by this Court in this appeal. Since we are
allowing the appeal and setting aside the order passed by
the High Court, the order dated 26th April, 2016 passed by
the Central Government is of no consequence and does not
come to the aid of KIMS or the students.
32. Learned counsel for KIMS and the students contended
that unless this appeal is dismissed it will result in the
students suffering a loss of two years of their studies. This
may be so – but if such a situation has come to pass, KIMS
is entirely to be blamed. KIMS was specifically told not to
admit students by the Central Government in its letter
dated 15th June, 2015. Despite this KIMS persisted in
litigation to somehow or the other accommodate 50
additional students. This was certainly not with a charitable
motive. As an institution that should have some
responsibility towards the welfare of the students, it would
have been far more appropriate for KIMS to have refrained
from giving admission to 50 additional students rather than
being instrumental in jeopardizing their career.
33. However, for the fault of KIMS, the students should
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not suffer nor should KIMS get away scot free. KIMS must
pay for its inability to introspect and venture into
adventurist litigation. Accordingly, we direct as follows:
1. The admission granted to the 50 students pursuant to
the order of the High Court dated 25th September,
2015 and the provisional permission granted by the
Central Government only on 28th September, 2015
shall not be disturbed. How the students will complete
their course of studies without putting undue pressure
on them is entirely for the MCI and KIMS and other
concerned authorities to decide.
2. Costs of Rs. 5 crores are imposed on KIMS for playing
with the future of its students and the mess that it has
created for them. The amount will be deposited by
KIMS in the Registry of this Court within six weeks
from today. The amount of Rs. 5 crores so deposited
towards costs shall not be recovered in any manner
from any student or adjusted against the fees or
provision of facilities for students of any present or
subsequent batches.
3. KIMS is restrained from increasing the intake of
students from 100 students to 150 students for the
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MBBS course for the academic year 2016-17 and
2017-2018. The MCI and the Central Government
shall enforce strict compliance of this direction.
4. The MCI or the Central Government will proceed to
take action against KIMS (if deemed advisable) under
Clause 8(3) of the Medical Council of India
Establishment of Medical College Regulations, 1999
(as amended) as mentioned in the communication of
15th June, 2015 of the Central Government.
5. During the hearing of the appeal, we were informed
that there is no fixed, set or laid down procedure
prepared by the MCI for conducting an inspection or
assessment as postulated by the Medical Council of
India Establishment of Medical College Regulations,
1999. Rather than every Inspection Team following its
own procedure for conducting an assessment, the MCI
should in consultation with the Central Government
prepare a Standard Operating Procedure for
conducting an inspection as required by the Medical
Council of India Establishment of Medical College
Regulations, 1999. The Standard Operating Procedure
should be finalized within a period of six weeks from
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today and should be accessible on the website of the
MCI.
6. To introduce transparency and accountability in the
medical colleges, the report or assessment of the
Inspection Team should be put up on the website of
the concerned medical college as also on the website of
the MCI so that potential students are aware of what is
likely to be in store for them. Similarly, the decision of
the Central Government on the report should be put
up on the website of the concerned medical college as
also on the website of the MCI.
34. To ensure compliance of Directions 2 and 5 and for an
update on Directions 4 and 6 list the appeal in the first
week of July 2016.
35. The appeal is disposed of on the above terms.
..……………………..J (Madan B. Lokur)
New Delhi; ………………………J May 6, 2016 (N.V. Ramana)
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